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Employment Law Alert

February 7, 2013

FMLA Leave to Care for an Adult Child with a Disability

This month the United States Department of Labor (“DOL”) clarified when an employee may use FMLA leave to care for an adult child with a serious health condition.  The FMLA has always permitted employees to utilize leave to care for a child, which the Act defines as a son or daughter of the employee who is either under 18 years of age or is age 18 or older and is incapable of caring for him/herself due to a mental or physical disability. While actually confirming positions already taken by the DOL, these clarifications broaden the scope of employees eligible to take FMLA leave and, if to care for servicemen and women, confirm the extended length of leave available to these employees.

In its most recent clarification, the DOL first confirms that the age of the child at the time of the onset of the disability is irrelevant in determining whether the employee is covered by the FMLA.  Said differently, it does not matter whether the “adult child” was an adult (age 18 or older) when the disability first occurred. Next the DOL endorsed recent amendments to the ADA which broaden the definition of a disability. When applied together, the pool of employees eligible to take FMLA leave to care for adult children has been significantly expanded.  Finally, the Administrator’s Interpretation further clarifies that parents of an adult child who sustained an injury or illness in military service may be allowed to take leave in excess of the FMLA’s military provider provision.  Specifically, parents of injured servicemen and women have the right to take up to 26 weeks of leave in a single 12-month period, and may be entitled to additional leave in subsequent years.  It was previously unclear whether these parents were only entitled to one 26-week leave period per injured child (opposed to leave that renews on a yearly basis).

As always, employers must keep up to date with current leave laws and be wary of additional “tripwires” when auditing their FMLA compliance.

Service Contract Act Employees Now Have Right of First Refusal For Employment With Successor Contractor

Government contractors take note:  The final rule implementing the President’s Executive Order which provides service contract employees with a right of first refusal of employment with a successor contractor went into effect on January 18, 2013.

Successor contractors who provide services pursuant to the Service Contract Act are required to give the predecessor’s employees a right of first refusal of positions for which they are qualified under the successor contract.  This right of first refusal must remain open for at least 10 days. The successor contractor may not hire new employees to replace any predecessor employees until the right of first refusal has been offered to each qualified employee of the predecessor contractor.

The rule has certain exceptions.  For example, the rule does not apply to: (i) contracts or subcontracts under the Simplified Acquisition Threshold (currently $150,000 in most cases); (ii) employees who split their time between Service Contract Act covered contracts and other commercial, non-federal government contracts; (iii) employees under the predecessor contractor who are exempt under the Fair Labor Standards Act; (iv) employees under the predecessor contractor whom the successor reasonably believes, based on the employee’s past performance, failed to perform suitably on the job; or (v) positions for which the successor intends to utilize its existing employees, provided that those employees have worked for the successor for at least three months and would face discharge if not offered employment under the successor contract.

Successor contractors who provide services pursuant to the Service Contract Act should review their policies and practices to ensure compliance with the new rule.  Penalties for non-compliance include backpay, reinstatement, and potential suspension and/or debarment. 


The contents of this Alert are for informational purposes only, and do not constitute legal advice. If you have any questions about this Alert, please contact a member of the Shulman Rogers Employment and Labor Law Group or the Shulman Rogers attorney with whom you regularly work.


Gregory D. Grant

Meredith “Merry” Campbell